Hansen v. Ponticello
| Decision Date | 27 October 1971 |
| Citation | 325 N.Y.S.2d 795,37 A.D.2d 892 |
| Parties | In the Matter of Charles HANSEN, Appellant, v. John PONTICELLO et al., Constituting the Zoning Board of Appeals of the Town of Johnstown, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Schlusberg & Blatt, Gloversville (David Blatt, Gloversville, of counsel), for appellant.
Harry F. Dunkel, Town Atty., Town of Johnstown, Gloversville, for respondents.
Before HERLIHY, P.J., and STALEY, GREENBLOTT, SWEENEY, and SIMONS, JJ.
Appeal from a judgment of the Supreme Court at Special Term, entered January 5, 1971 in Fulton County, in a proceeding under CPLR article 78, which confirmed the decision of the Zoning Board of Appeals of the Town of Johnstown, dated November 5, 1970, denying petitioner's application for a Special Permit to place two mobile homes on his property.
In 1969, the petitioner and his wife acquired a 182 acre farm on Circle Drive in the Town of Johnstown, which is also bounded in part by Route 29. In the fall of 1970, petitioner made application for two special permits to place two mobile homes upon this farm, one to be used as a residence for himself and his wife, and the other for similar use by his daughter and son-in-law, with entrances to the mobile homes to be on Circle Drive.
The application was made pursuant to subidivision B of section 7 of the Town Zoning Ordinance which authorizes the Zoning Board of Appeals to issue a special permit for the use of mobile homes in a residential-agricultural district.
The following criteria were established to guide the Zoning Board of Appeals in its review of each application for a special permit for mobile home use, to wit:
'Mobile homes should not be placed:
1. Near adjacent city boundaries because this is where conventional residential expansion is anticipated.
2. Along major highways in the Town leading out of adjacent cities, for the same reason.
3. In areas of the Town where conventional housing is already congregated and expanding.
Areas suitable for mobile home locations:
1. Areas where mobile homes are already congregated.
2. Relatively remote areas, not on major highways, where no housing exists or only scattered conventional housing exists with little hope of expansion in the coming years.'
On November 5, 1970 the Board of Zoning Appeals determined after a hearing and consideration of the above criteria that:
'This leaves gray areas composed of farm lands containing scattered...
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Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Commission
...discretion in granting the permit. See Corwine v. Crow Wing County, 309 Minn. 345, 244 N.W.2d 482, 486 (1976); Hansen v. Ponticello, 37 A.D.2d 892, 325 N.Y.S.2d 795, 797 (1971); 3 A. Rathkopf, The Law of Zoning and Planning, § 42.07 at 42-49 to 42-75 (4th ed. 1981 & Supp. 1981); accord, App......
- Kreisler v. Dennis Bridgehampton Bldg. Corp.